ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20170013921 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-Authored Statement * National Personnel Records Center (NPRC) Letter dated 20 April 2016 * DD Form 4 (Enlistment Contract – Armed Forces of the United States) * Military Test Report * DA Form 20 (Enlisted Qualification Record) * DA Form 2 (Personnel Qualification Record) * Certificate of Training – Field Wireman Course dated 15 November 1973 * DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) * Letters of Support (x11) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he would like his under other than honorable conditions discharged changed to a general, under honorable conditions discharge. a. He begins by providing insight into his childhood. The 9th of 11 children born to migrant workers. They moved from state to state following crops and were expected to assist during peak periods. As a result, they were never able to complete a school year or even school. He had not obtained a diploma or GED. b. He joined the Army on 31 July 1973 at the age of 19 with the intentions of making it a career or at a minimum obtain marketable skills. Upon completion of training, he reported to Fort Lewis, WA as a 36K (Tactical Wire Operations). c. He wore his uniform proudly and his family was also proud of him. He proudly states that he never disobeyed a direct or indirect order from his superiors. He was consistently praised for doing a good job and as a result he was driven to do more. d. He recalls the incident that led to his challenges. He parked his vehicle and reported to the company. At the end of the day he returned to his vehicle to run errands. He noticed another vehicle illegally parked behind his vehicle. He waited approximately 25 minutes for the owner to return and attempted to drive over the parking bumper since the owner did not return. e. His vehicle stalled and rolled back. He got out of the vehicle to investigate the damage and noticed his master sergeant walking towards him and he appeared to be very upset. He was attempting to explain to the master sergeant what happened and was informed at that time the vehicle belonged to him. The applicant stated he was devastated and did not know what to do to regain the rapport he once shared with his master sergeant. f. Approximately two weeks later he was unable to locate his master sergeant to request permission to take Friday off to visit his parents. He then went to his lieutenant and his request was approved. He spent the weekend with his family and the following week he was called into his commander’s office and was read his Miranda Rights. Once he shared with them that he received verbal permission from the lieutenant he was dismissed. g. He overheard loud voices in the commander’s office when the lieutenant was called in to confirm. The lieutenant then came out of the office and stated he was now in “hot water” and the applicant should know he was also in “hot water” with the commander and master sergeant. He believed he had a target on his back from that moment on. h. A week later he went to visit his parents in Yakima, WA. He was headed back to the installation on Sunday night when his vehicle broke down. He was able to locate a gas station in a small town, but was informed their mechanic had left for the day and it would have to wait until Monday. He contacted his master sergeant and explained the situation. He even offered the gas station’s telephone number for confirmation. i. The master sergeant informed him he would not call the gas station and if he was not present for Monday morning formation he could turn himself in to the military police station. He went on to say that he should not show up for roll call or return to the barracks. He was convinced he was still paying the price for unintentionally hitting his master sergeant’s vehicle. j. Fearing the worst, he reluctantly decided with a heavy heart to return to base. He conceded that his decision was wrong but he was genuinely convinced that no one would listen to the events that kept him from reporting on time. The guilt weighed so heavily on him that he eventually turned himself in to the Yakima Firing Center. k. He was informed by a military attorney that he had two options, he could return to the retraining brigade with a felony conviction or he could take an undesirable discharge with the understanding that he could return to any Veterans Office in the future and have it upgraded to a general discharge. He took the latter option in hopes of avoiding the felony conviction. l. He deeply regrets the decision he made almost 40 years ago. After having to reveal his actions to his own sons, it has taken an even greater toll on him. He honestly believes that had it not been for the described incidents, he would have made a career out of the military. m. He held odd jobs after leaving the military and by age 26 had saved enough money to purchase his first working truck. He now owns a successful business with his son. Recognizing that he could have pursued a change in discharge sooner, he was unable to bring himself to relive the consequences of his actions. He strongly believes he has paid his dues and is requesting a change and correction to his military record under the provisions of Title 10, U.S. Section 1552. 3. The applicant provides: a. A letter from NPRC dated 20 April 2016, wherein he requested a copy of his service record and was provided the following: * DD Form 4 * USAFI Form 6A2.15 (Military Test Report) * DA Form 20 * DA Form 2 * Certificate of Training – Field Wireman Course * DA Form 2627-1 * DD Form 214 b. Letters of support were submitted by 11 family members. (1) His brother offered that they were a family of 11 children and their constant moves made it difficult to make friends and they never completed a single school year. They were raised with high morals and despite the obstacles, his brother, the applicant, persevered and overcame many obstacles. He made a successful life for himself and his family. He beat the odds, but never forgot his humble beginnings. He remembers when his brother did not return to the military and he recalls him being devastated, ashamed, and broken, but he managed to move on. (2) One of his older sister recalls the financial struggles she and her husband endured running a business of their own and the applicant was always there for them financially, when needed. He never pressured them to pay back the money right away, he patiently waited for them to have the ability and for that they are eternally grateful. She could not ask for a better brother. (3) Another one of his older sisters stated she is the proud owner of rental properties in California. Their parents taught them to be self-sufficient, hardworking, honest, and responsible. Her brother has an astonishingly big heart and he is always there for them. He is highly respected in the family and despite their occasional differences, he always listens and respects her opinion. He is always willing to help others. (4) The applicant’s brother in law offered he has known the applicant for approximately 16 years and is marveled by what the siblings have endured in life. He considers him a good friend and proud to call him his brother-in-law. He is a loving son, brother, husband, father, and grandfather. He has risen from a very modest and grim childhood to becoming a hardworking, successful businessman. His humble beginnings have given him wisdom beyond his years and he is an asset to his community. (5) His brother stated that he considers the applicant more structured. Although he has made hasty decisions at times and not thought them through, he could always count on the applicant to assist him. There was one instance where he borrowed a large sum of money and was unable to pay the applicant back. The applicant hired him to work in his own trucking company and recognizing his financial struggles, told him not to worry about the last $4,000.00. He feels indebted to the applicant forever. (6) His younger sister boasts about her brother’s accomplishments as the Chief Executive Officer of his own company. He has an excellent rapport with the family and is the one they go to when they seek advice or direction. He is intelligent, capable, dedicated, and devoted to his friends, family, and his community. (7) His niece views him as a brother, having been raised by her grandparents. She offered numerous examples of his generosity. One example provided was of him trading his car with her old pickup truck to give her a secure mode of transportation. The car lasted her years and the pickup truck left him stranded. She is fortunate to have a brother like him and he has always been there for her. (8) The applicant’s wife stated he raised 2 of her children as his own, but they have 4 total. Every day has not been easy, but they manage to find a solution and move forward. He finds a solution to everything and has always been there to help his siblings. He is always there for his family, which is the kind of person he is. (9) His son recognized the sacrifices his father was making for the family. Although it was difficult at times only seeing him on the weekends, he now understands the determination his father had to give them a better life. His dad taught him a strong work ethic and about family. He has enjoyed working alongside him and now serves as a partner in their trucking company. He has been a strong role model and one of the most important people in his life. (10) His daughter-in-law views the applicant as a strong male role model having known him for 16 years. She served as an office manager for the trucking company and she learned he is a strong businessman and has an even stronger work ethic. He has instilled the same in his sons and can appreciate how much they can depend on him. Her sons adore their grandpa and know that it he is only a call away. (11) His youngest son recalls the early stages of his father’s career having to do the maintenance on his own trucks, working day and night. The applicant dedicated his life to giving his family the things in life he very had. He never once complained and shared his childhood stories which helped instill in his children the value of hard work. His father did all he could to see his children earn college educations and as a result he credits his father with his current position as a probation officer. If it were not for the applicant, he would not be where he is today. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 31 July 1973. b. He received nonjudicial punishment on 1 April 1974 for failure to go to his appointed place of duty. His punishment included reduction to private/E-1, suspended for 60 days, forfeiture of $25.00 for one month, and restriction for 7 days. c. On 15 December 1974, his status was changed from present for duty to absent without leave (AWOL). He was subsequently dropped from rolls as a deserter on 14 January 1975. d. On 18 August 1975, a letter from the Federal Bureau of Investigation stated the applicant surrendered himself as an AWOL to the Yakima Firing Station. e. On 21 August 1975, the applicant’s status was changed to present for duty on Special Orders Number 233 with an effective date of 15 August 1975. f. The record is void of any and all documentation pertaining to the applicant’s notification, initiation, or action for separation proceedings. However, the record contains: (1) On 12 September 1975, Special Orders Number 255 directed the discharge of the applicant with an effective date of 12 September 1975. (2) DD Form 214 (Report of Separation from Active Duty) shows he was discharged from active duty on 12 September 1975, in accordance with chapter 10 (for the good of the service-in lieu of trial by court-martial) of Army Regulation (AR) 635-200 (Personnel Separations) with an under other than honorable conditions characterization of service. His DD Form 214 further shows: * he completed 1 year, 5 months, and 9 days of active service with 243 days lost time * he was awarded or authorized National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar 5. By regulation, an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions, letters of support and post-service achievement were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the relative short term of honorable service completed prior to a lengthy AWOL offense, as well as his letters of support were all from family members (interested parties) failing to provide evidence of post-service achievements, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013921 7 1